PARIN -v- Q GROUP WA PTY LTD [2026] WASC 244

[2026] WASC 244 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : PARIN -v- Q GROUP WA PTY LTD [No 2] [2026] WASC 244 CORAM : HOWARD J HEARD : 18 - 21, 25 and 29 MAY 2026 DELIVERED : 18 JUNE 2026 FILE NO/S : CIV 2073 of 2018 BETWEEN : DAVID VICTOR PARIN First Plaintiff EDGE INVESTMENTS (WA) PTY LTD Second Plaintiff AND Q GROUP WA PTY LTD First Defendant MAREMA NOMINEES PTY LTD Second Defendant Catchwords: Whether misleading and deceptive conduct on the part of the Engineer retained for a residential property development - Where there is a defective retaining wall on the neighbour's property - Where the retaining wall was rotating towards the plaintiffs' property - Where options put to the plaintiffs by the Engineer to resolve the issue - Whether the plaintiffs rejected solutions put by the Builder and the Engineer - Claim against the Builder settled during trial - Claim against -- 1 of 60 -- [2026] WASC 244 Page 2 the Engineer narrowed to one email - Whether plaintiffs relied on representations made in that email - Finding that the representations were not made as pleaded - Finding that the representations were not misleading or deceptive or likely to mislead or deceive - Finding that the plaintiffs did not rely on the representations - Finding that loss or damage could not be establish as pleaded - Plaintiffs' claims against the Engineer dismissed Legislation: Civil Liability Act 2002 (WA) Competition and Consumer Act 2010 (Cth) Result: Dismissed Category: B Representation: Counsel: First Plaintiff : A P Rumsley Second Plaintiff : A P Rumsley First Defendant : R J Lee Second Defendant : F A Stanton & I Smith Solicitors: First Plaintiff : Alan Rumsley Second Plaintiff : Alan Rumsley First Defendant : Jacobson & Associates Second Defendant : Wotton Kearney Lawyers Case(s) referred to in decision(s): Nil -- 2 of 60 -- [2026] WASC 244 HOWARD J Page 3 HOWARD J: Overview 1 Mr Parin, the first plaintiff, owned a property at 218 Ewen Street, Woodlands in this State (Property) which historically had a 1950s house and shed built on it. 2 Mr Parin wanted to develop the property by constructing eight Units on that land. To that end, the first defendant, the Builder and the second defendant, the Engineer were engaged. 3 During preparatory works on the Property, a problem was identified with a Retaining Wall on the neighbouring property to the west of the Property. 4 Options were put forward to resolve the problem with the Retaining Wall, but none was implemented and the construction of the Units was started. 5 Prior to the completion of the development, the building contract came to an end. Soon after, in 2018, Mr Parin commenced these proceedings against the Builder, and then some years later joined the Engineer. 6 Ultimately, the construction was not completed and Mr Parin sold the Property with the construction only partially complete. 7 During the course of the trial, Mr Parin settled his claim against the Builder, as well as the Builder's counterclaim against him, and the trial continued against the Engineer. 8 The claim made against the Engineer is that it caused Mr Parin and the corporate second defendant, of which Mr Parin was the sole director at all material times, loss and damage by reason of an email sent on 15 January 2018 which was said to be misleading and deceptive in breach of the well-known statutory provisions. 9 In short, Mr Parin says that by that email, the Engineer represented that the problem with the Retaining Wall had been rectified, when that was not the case. -- 3 of 60 -- [2026] WASC 244 HOWARD J Page 4 10 At the time of the trial, the current pleadings were the: 1. sixth amended statement of claim filed on 28 April 2026 (SOC); 2. first defendant's re-amended defence filed on 12 May 2026 (first defendant's defence); 3. first defendant's fourth amended counterclaim filed on 15 May 2026; and 4. second defendant's third further re-amended defence filed on 5 May 2026 (Defence). Facts found 11 This section principally sets out my findings of fact. Unless otherwise indicated, for the avoidance of doubt, I have made findings of fact in accordance with the facts stated in this section below. 12 Mr Parin bought the Property on about 7 April 2015.1 He remained the registered proprietor until about 24 July 2025 when he sold the Property. 13 As mentioned above, there was a limestone Retaining Wall on the neighbour's property (at 216 Ewen Street) that ran along the western side of the Property. 14 In these reasons, I have proceeded on the basis that Arthur Naoum was effectively the owner of the neighbouring property at 216 Ewen Street.2 Mr Naoum appears to have been the only person who interacted with Mr Parin or the Builder as owner of the neighbouring property. 15 In these reasons, where I refer to the neighbouring property, the neighbour's side or the neighbour, I am referring to the property at 216 Ewen Street and Mr Naoum respectively. 16 Ewen Street runs along the southern side of the Property. 17 Relevantly, the Property slopes downwards from west to east. 18 The Retaining Wall started at one block high at the southern, Ewen Street end. Moving northwards, the wall progressed through two 1 Witness Statement of David Victor Parin dated 7 December 2025 (as amended and with paragraphs 136 and 137 struck out) (Exhibit A) [3]. 2 Exhibit A [5]. -- 4 of 60 -- [2026] WASC 244 HOWARD J Page 5 courses or two blocks, to three blocks or courses and finished in the north-west corner at four courses or four blocks. There was a Colorbond fence on top of the Retaining Wall.3 19 At least up until August 20234 there was a problem with the Retaining Wall. It had not been constructed properly, at least, at the northern end and was leaning towards the Property there in a way that engineers would describe as 'rotating'. 20 The Retaining Wall had been constructed prior to any planning for, or construction of, the Units. Its structural problems also pre-dated such planning or construction. 21 Mr Parin's plan to redevelop the Property included demolishing the 1950s house and constructing four double storey buildings comprising the eight Units (Development). 22 It was Mr Parin's intention at all material times up to at least June 2018, to sell four of the Units and to retain the other four Units to lease out. 23 The Development was, and is, Mr Parin's only building development.5 24 Mr Parin intended to undertake the Development through his company, the second plaintiff. For the purposes of this case, however, the second plaintiff was, and is, simply Mr Parin's alter ego.6 It was not suggested that the second plaintiff's position was materially different from Mr Parin's in any relevant respect. References to Mr Parin in these reasons should be understood as including the second plaintiff. 25 From about April 2015, Mr Parin engaged an architect, Mr Germano, to prepare architectural drawings for the Units. 26 On about 15 September 2015, the Engineer provided to Mr Parin a proposal to provide structural engineering services in relation to the 3 ts 202 - 203. 4 See [180] below which recounts the neighbour complying with the second Building Order. 5 ts 197 - 198. 6 ts 103. -- 5 of 60 -- [2026] WASC 244 HOWARD J Page 6 Development.7 Subsequently, the plaintiffs retained the Engineer on the terms which had been proposed.8 27 Michael Lalli was the prime actor on behalf of the Engineer throughout. So, references to Mr Lalli in these reasons include the Engineer. 28 By about 26 November 2015, Mr Germano had prepared designs or architectural drawings for the Development9 which, as will be seen, were subsequently part of the Building Permit approved in September 2017 by the City of Stirling. 29 On 17 December 2015, the proposed Development was approved by the City of Stirling.10 30 In September 2016, Mr Parin entered into a contract of sale (off the plan) for proposed Lot 7 of the Property for a purchase price of $550,000.11 That contract provided for completion of the Development by the end of June 2018.12 31 In November 2016, Mr Parin entered into a contract of sale (off the plan) with a purchaser for proposed Lot 8 of the Property for a purchase price of $572,500.13 That contract provided for completion of the Development by the end of December 2018.14 32 On 31 August 2017, the Builder provided a preliminary construction program to the plaintiffs.15 33 On 11 September 2017, the plaintiffs entered into a lump sum building contract with the Builder for the building works at the Property (Building Contract).16 7 Trial Bundle document 4; SOC [8A]. From here, I have referred to documents included in the trial bundle simply as 'TB' followed by the document number. 8 SOC [8D.1]; Defence [8A.1(b)]; Plaintiffs' opening submissions filed on 15 May 2026 (Plaintiffs' opening submissions) [34]. 9 Plaintiffs' opening submissions [37]; TB 8. 10 TB 14; SOC [4]. 11 TB 21; SOC [5] - [6]. 12 TB 21 at PDF page 15; SOC [6]. 13 TB 22; SOC [7] - [8]. 14 TB 22 at PDF page 15; SOC [8]. 15 TB 34; SOC [9.3]. 16 SOC [11]. -- 6 of 60 -- [2026] WASC 244 HOWARD J Page 7 34 The Building Contract comprised: 1. a Housing Industry Association Lump Sum building contract dated 11 September 2017;17 2. a Construction Addenda;18 3. a special conditions annexure;19 and 4. Drawings and Specifications which included Engineering Drawings prepared by the Engineer.20 35 The prime actors for the Builder throughout the relevant period were Michael Lamattina (who had the role of project manager, but who was not a registered builder) and Glenn Smith (who was and is a director of the Builder). Where I refer in these reasons to Mr Lamattina or Mr Smith, I am referring to them acting on behalf of the Builder. 36 On about 15 October 2015, the Engineer carried out a site inspection, the results of which were included in a Site Inspection and Classification Report dated 2 December 2015.21 37 Between about 11 November 2015 and September 2017, the Engineer prepared structural drawings in relation to the Development.22 The drawings prepared by the Engineer included those labelled: 1. Rev A dated 11 November 2015;23 2. Rev B dated 26 November 2015;24 3. Rev 0 dated 2 December 2015;25 4. Rev 1 dated 14 December 2015;26 5. Rev 2 dated 5 September 2016;27 6. Rev 3 dated 20 April 2017;28 and 17 TB 38; SOC [13]. 18 TB 39; SOC [13]. 19 TB 40; SOC [13]. 20 TB 42. These were the Engineer's Drawings Rev 4 dated 24 July 2017; SOC [13], [14.2]. 21 TB 11. 22 TB 44; SOC [8E]. 23 TB 7. 24 TB 9. 25 TB 10. 26 TB 13. 27 TB 19. -- 7 of 60 -- [2026] WASC 244 HOWARD J Page 8 7. Rev 4 dated 24 July 2017.29 38 The Engineer's Drawings Rev 3 dated 20 April 201730 contained an annotation (Engineer's Annotation) which read: Microfine cement grout injection or equivalent by specialist sub contractor to form continuous permanent underpinning to existing structure above. Underpinning works must be designed such that no support is provided by new building.31 39 The Engineer's Annotation was shown in two places in the Engineer's Drawing Rev 3 but, most relevantly for present purposes, was made in the north-west, top right, corner of the plan immediately above proposed 'Unit 3'.32 40 That Unit was not consistently described as 'Unit 3' throughout the contemporaneous documents. In the interests of clarity, I refer to it in these reasons as the NW Unit. 41 Where these reasons refer to the Retaining Wall leaning towards the Property or the new construction, or touching the new construction and so loading it, what is being referred to is the NW Unit which was to be the closest Unit to the rotating part of the Retaining Wall. 42 Mr Lalli's evidence was that the Engineer's Annotation recognised that the Retaining Wall required reinforcement (via a grout injection) so that the Retaining Wall would not be dependent on any support from the new building (including the NW Unit) to be constructed on the Property.33 I accept that evidence. This is the first of two senses in which the word or concept of 'loading' is used.34 The second sense is that the Retaining Wall could rotate or lean towards the NW Unit on the Property so as to touch it and load the new building. It is common ground, and I find, that the first identification of the risk of that rotation or leaning was made by Mr Lalli on 2 October 2017.35 This will be returned to below. 28 TB 26. 29 TB 42. 30 TB 26. 31 TB 26 at PDF page 2. The Engineer's Annotation appeared as well in all of the Engineer's subsequent drawings. 32 TB 26 at PDF page 2. 33 Witness Statement of Michael Anthony Lalli dated 27 January 2026 (Exhibit H) [30] - [33]. 34 See second defendant's outline of closing submissions filed on 29 May 2026 (second defendant's closing submissions) [7]. 35 Exhibit H [10]; ts 218. -- 8 of 60 -- [2026] WASC 244 HOWARD J Page 9 43 The Engineer's Drawings Rev 3 on sheet 336 had a diagram or 'detail' which showed, towards the bottom right of the page, a diagram which detailed the 'existing limestone retaining wall' at three courses with one backing block behind it at its bottom. That detail also showed the Engineer's Annotation with an arrow pointing to the ground immediately under the Retaining Wall on the neighbour's side. 44 Further, the detail showed a 'post and panel retaining wall' in front of the Retaining Wall to the east, on the Property's side. It was common ground that although described as a 'retaining wall' the 'post and panel wall' was at no material time understood by the Engineer, the Builder nor Mr Parin to be a retaining wall per se. It was always designed to protect from the weather the face of the soil which was to be injected with grout. 45 At the time the detail was drawn, Mr Lalli did not know whether there were backing blocks behind the Retaining Wall. Rather, he drew it from his expectation that the Retaining Wall would have been built and designed to normal accepted principles:37 that would have included one backing block behind the Retaining Wall where it was three blocks high and two backing blocks behind the Retaining Wall where it was four blocks high.38 46 On about 19 September 2017, the City of Stirling issued a building permit for the Development (Building Permit).39 The Building Permit was granted, in part, on the basis of: 1. Engineer's Drawings Rev 3 dated 20 April 2017;40 and 2. the design or architectural drawings prepared by Mr Germano dated 26 November 2015.41 47 On 30 September 2017, the Builder asked Mr Parin to arrange a meeting with the owner of the neighbouring property.42 48 On 2 October 2017, Mr Lalli inspected the Property and the Retaining Wall with Mr Parin, Mr Lamattina and the neighbour.43 36 TB 26 at PDF page 4. 37 ts 420, 423. 38 ts 421. 39 TB 44; SOC [8E]. 40 TB 44 at PDF page 174 and following. 41 TB 8; which became part of TB 44 at PDF page 184 and following. 42 TB 45; ts 181, 208. 43 SOC [18A]; Defence [9.1(c)]. -- 9 of 60 -- [2026] WASC 244 HOWARD J Page 10 49 There was probing done under the Retaining Wall on the neighbour's side by the Engineer with a penetrometer to determine if there was a mass under the ground next to, or behind, the Retaining Wall on the neighbour's side.44 50 It appears to be common ground that Mr Lalli gave some advice at the Property on 2 October 2017 as to the Retaining Wall,45 including to Mr Parin. 51 Mr Parin had only a very general recollection of what was discussed at that meeting.46 52 In cross-examination, Mr Parin accepted he was told that a lack of embedment, the lack of backing blocks, and maybe the vegetation or trees on the neighbour's property had caused the Retaining Wall to lean in towards the Property.47 I find that Mr Parin was notified of these matters by Mr Lalli at the Property on 2 October 2017. 53 Mr Lalli's evidence was to the effect that on 2 October 2017 he pointed out to Mr Parin that, if the only stabilisation measure adopted was the installation of the Grout Block, it would be necessary for the Retaining Wall to be monitored for continued rotation and then for remediation to be demanded from the neighbours if that occurred.48 There was no challenge to that evidence from Mr Lalli in cross-examination. 54 Mr Parin denied in his evidence that Mr Lalli told him that he was to monitor the Retaining Wall or that he had agreed to do so.49 I do not accept Mr Parin's evidence that he had not been told to, and had not agreed to, monitor the Retaining Wall. 55 I find that Mr Lalli did advise Mr Parin, on 2 October 2017, that the Retaining Wall would need to be monitored for continued rotation, as per his evidence. 56 While I have found that such advice was given at the meeting on 2 October 2017, I do not consider it is material whether Mr Lalli raised the monitoring of the Retaining Wall at the Property on 2 October 2017 or on some occasion soon after that. I accept that he did so in 44 Exhibit H [56] - [57]; ts 422. 45 Exhibit H [55] - [56]; SOC [18A], [18B]; Defence [9.1(e)]. 46 ts 171 - 172, 209. 47 ts 211, 218. 48 Exhibit H [75]. 49 ts 241 - 243. -- 10 of 60 -- [2026] WASC 244 HOWARD J Page 11 October 2017. I have set out below in [126] - [129] why I have reached that conclusion. 57 Otherwise, it was common ground50 that exactly what was said at the Property on 2 October 2017 is not of great moment because of the email which was sent by the Engineer a couple of days later on 4 October 2017 to the Builder (Engineer's 4 October 2017 email);51 and which was then forwarded by the Builder to Mr Parin some minutes later.52 58 Also, for present purposes, it does not matter whether all of the statements made by the Engineer in his email of 4 October 2017 were also made by him on 2 October 2017. 59 The Engineer's 4 October 2017 email stated, relevantly: • The section of existing limestone retaining wall to the rear of the site appears to have no backing blocks. The wall in this area is considered to be structurally inadequate and not built to generally accepted principles, where backing blocks would be expected. • The section of wall to the rear is exhibiting signs of cracking and rotation. Cracking was visible in two locations. • The wall generally appeared to have little or no embedment of the bottom block. This will generally affect the stability against overturning should undermining of the front edge of the wall occur. It can also affect stability of the wall in sliding. • There were a number of trees and hedges planted immediately behind the wall which would exert some lateral loads onto the wall depending on the root system. Planting of trees in close proximity to a retaining wall is not recommended. • The option of using microfine grout injection behind the wall to stabilise it from further rotation was suggested, however, this would most likely result in all vegetation planted behind the retaining wall being affected and most probably dying. Thus the only other area to grout injection would be directly under the limestone retaining wall. • If the underside of the existing retaining wall is grout injected, the stability of the existing limestone retaining wall cannot be guaranteed and would likely continue to rotate, loading the new construction, requiring it to be strengthened. 50 ts 506. 51 TB 49. 52 TB 48. -- 11 of 60 -- [2026] WASC 244 HOWARD J Page 12 • The option of strengthening the new construction by the introduction of reinforced and concrete filled cavity brick construction was considered. This however will impinge on the internal dimensions of the Unit, particularly the Kitchen, Bath and Store, where the thickness of the wall construction would be greater than the existing walls. For example, the new concrete filled cavity wall in the Kitchen and Bathroom areas would increase from 250mm to 300mm. In the Store room, it appears that the existing single leaf wall would increase to 300mm, which may affect the minimum area requirement of the store. We have investigated to use of [sic] reinforced core filled block construction to reduce the overall thickness of the wall to say a maximum of 200mm and would be happy to discuss with you, should you prefer to go down that path.53 60 The parties (in the trial) generally referred to: 1. the option put by Mr Lalli in the fifth bullet point as quoted in [59] above (namely the microfine grout injection behind the wall on the neighbour's side) as Option 1. And, it was common ground that was not considered to be a viable option (from early October 2017 onwards) because of the neighbour's rejection of it; 2. the penultimate bullet point in the email quoted in [59] as Option 2. It was common ground that the proposed grout injection had been shown in the Engineer's Drawings Rev 3 and was proposed by the Engineer prior to the inspection at the Property on 2 October 2017. That is, and I find, that it was not in any relevant sense a new option being presented to Mr Parin on 4 October 2017; 3. the last bullet point quoted in [59] as Option 3 (namely a reinforced and concrete filled cavity wall for the NW Unit where it faced the boundary and the Retaining Wall); and 4. the last paragraph quoted in [59] not against a bullet point (namely the use of a reinforced core-filled block construction) as a variation of Option 3. 53 TB 49. -- 12 of 60 -- [2026] WASC 244 HOWARD J Page 13 61 Mr Lalli's evidence was that the rotation would have started from the Retaining Wall's construction and was slow-moving or moving at a glacial speed.54 I accept that evidence. 62 In addition to the Engineer's 4 October 2017 email, Mr Lalli's evidence was that the absence of the backing blocks meant that the wall was 'structurally inadequate',55 and that injecting grout underneath the Retaining Wall but not behind it would not prevent continued rotation.56 63 Further, his evidence was that if there was continued rotation, that may eventually lead to the Retaining Wall touching the new building and loading it.57 This is to use 'loading' in the second sense I identified above. I accept this evidence. 64 Mr Lalli's evidence was that the two Options 3 provided were about strengthening the (western-most) wall of the NW Unit, which could take the load of the rotating Retaining Wall if it eventually touched the NW Unit.58 65 Mr Parin, in cross-examination, agreed that Mr Lalli had proposed grout injections on the neighbour's side as a solution, but that was rejected by Mr Naoum because he did not want the trees on his property to die, and as a result he was opposed to that proposed injection.59 66 Mr Parin accepted that Mr Lalli told him that if the grout injection from the Property (which had been included in the Engineer's Drawings Rev 3) was the only work done, there was a risk that the Retaining Wall would continue to rotate.60 67 Mr Parin also accepted in cross-examination that Mr Lalli had put another option to him, which was a different cavity wall for the proposed NW Unit which would be wider than that designed in the Engineer's Drawings Rev 3.61 68 As to Option 3 in the last bullet point quoted in [59] above, Mr Parin described it as not his preferred option.62 But, significantly, 54 ts 423. 55 ts 423. 56 ts 425. 57 ts 425. 58 ts 426 - 427. 59 ts 218, 228. 60 ts 220 - 221, 226. 61 ts 221. 62 ts 227 - 228. -- 13 of 60 -- [2026] WASC 244 HOWARD J Page 14 Mr Parin also accepted that it was his choice not to do the variation of Option 3.63 Mr Parin, later, accepted that he had ruled out Option 3 in October 2017.64 69 Mr Parin's evidence was that the wider, different cavity wall would make the construction non-compliant with the relevant building or residential code.65 70 In closing, the plaintiffs submitted that Mr Parin 'wasn't happy' with Option 3 because it would affect the size of the storeroom and that was effectively not an option.66 71 Mr Parin says he discussed that with Mr Germano, who told him that because the storeroom was already at a minimum size or dimension, other amendments would have to be made to the design. Mr Parin did not request, at any time, that Mr Germano make any such amendments.67 72 Mr Parin accepted, and I find it to be the case, that he knew, at least from the Engineer's 4 October 2017 email, that the Retaining Wall had no row of backing blocks behind it (on the neighbour's side). I find that remained the case notwithstanding the subsequent Engineer's Drawings Rev 5 - Rev 8 which showed a backing block on the detail on sheet 3 of each.68 It was made plain in the plaintiffs' closing submissions that the subsequent inclusion of the backing block on the detail in Engineer's Drawings Rev 5 - Rev 8 was not relied on by them as misleading or deceptive conduct.69 73 I find that what is recorded at paragraphs [65] - [72] above reflects Mr Parin's beliefs and understandings from some time on or after 2 October 2017 (but before the slab was poured at the NW Unit which was towards the end of November 2017). 74 As at 2 and 4 October 2017, it is important to note that no significant works, preparatory or otherwise, had occurred at the site. For example, no slab had been poured. 63 ts 227, 529. 64 ts 286. 65 ts 222, 228, 285, 286. 66 ts 506. See also Mr Parin's evidence at ts 185. 67 ts 222 - 223, 228, 529. 68 ts 223 - 224. 69 ts 541 - 542. -- 14 of 60 -- [2026] WASC 244 HOWARD J Page 15 75 The plaintiffs pleaded by SOC [18C] that shortly after the meeting on 2 October 2017: 1. the Engineer 'authorised, permitted or gave directions to' the Builder to commence construction of the Development;70 or 2. alternatively, after the Builder commenced construction, the Engineer did not advise the plaintiffs that the deficiencies in the Retaining Wall could not be, or had not been, rectified and that construction should not proceed until the deficiency in the Retaining Wall had been rectified.71 76 With the plaintiffs only relying on the Engineer's 15 January 2018 email at trial, it is difficult to discern any remaining significance of SOC [18C.1] and SOC [18.2]. 77 Indeed, SOC [18C] does not now appear to be relied upon by the plaintiffs in their cause of action against the Engineer.72 That is perhaps just as well as the plaintiffs would have faced both a factual problem with the pleas (i.e., there is no evidence that the Engineer did any such thing) but also, as will be noted, there was no case pleaded against the Engineer in respect of which these factual matters could have constituted a breach or breaches on the part of the Engineer. 78 And further, in any event, Mr Parin accepted that he was the only person who could authorise variations to the work and that they could not be authorised by the Engineer.73 79 An example of Mr Parin seeking to be careful with his answers so as not to, to his perception, damage his case was provided by an exchange with counsel for the Builder, prior to him settling his claim against it. Whilst being questioned about the meeting on 2 October 2017, Mr Parin was asked whether he was responsible for decisions on the Property concerning the Retaining Wall, and initially responded that he was responsible.74 80 Mr Parin then sought to say that the Builder was responsible.75 And Mr Parin, non-responsively, then sought to say that he would only 70 SOC [18C.1]. 71 SOC [18C.2]. 72 Plaintiffs' closing submissions [10]. 73 ts 178. 74 ts 181, 182. 75 ts 181. -- 15 of 60 -- [2026] WASC 244 HOWARD J Page 16 have made decisions based on the advice from the Engineer.76 When that was sought to be clarified with him, he said that he did not understand the question.77 81 On 5 October 2017, there was a meeting between Mr Parin, Mr Lamattina and the neighbour.78 82 Mr Parin's evidence initially was that he did not recall that meeting79 but he did remember it after being shown an email from the neighbour of 18 October 2017.80 I return to that email below. 83 On 9 October 2017, the Builder sent an email to Mr Parin at 7.59 am.81 The email is of some significance, and I have quoted it in full below: As a follow up to our discussions on Saturday the situation that we are faced with can be summarised as follows; • Engineer has assessed the last 12 l/m of the limestone retaining wall as insufficient to retain the soil from the neighbouring property and in general the retaining wall overall where it is 3 or more blocks high has not been built to an appropriate standard. • The installation of grout injection will not prevent the retaining wall from continuing to slide or rotate. • A proposed solution for the existing retaining wall is to grout inject on the neighbours [sic] side to stabilise it but this has been rejected by the neighbour at this stage. • As the builder of your project I am obliged to deal with this issue prior to proceeding with the excavation works. Of the solutions that we presented to Arthur (owner of neighbouring property) we discussed the following; 1. Grout Blocking of retaining wall – this was rejected. 2. Installation of concrete cavity filled wall to the boundary up to the height of the top of retaining wall – you did not prefer this solution. 76 ts 182. 77 ts 182. 78 TB 63 at PDF page 2l; ts 183. 79 ts 183. 80 TB 63 at PDF page 2. 81 TB 66. -- 16 of 60 -- [2026] WASC 244 HOWARD J Page 17 3. Reinforcing the existing retaining wall with limestone back-blocking from the neighbours [sic] side – this was rejected. 4. Installing a separate retaining wall in front of the existing retaining wall – this is being investigated further today to ensure that we can fit it in. It was apparent from Arthur that he did not want to disturb his side of the fence and was not prepared to contribute financially to the remediation of his retaining wall. The liabilities as we understand them from the advice received to date is as follows; 1. Existing retaining wall – this is the sole responsibility of Arthur to the extent that our works do not affect it. 2. Construction to mitigate this risk – is the responsibility of the Builder: a. Costs associated with this change is the responsibility of you the client i. Should Arthur refuse to participate financially, we understand that you are able to claim these costs from him as you have been compelled contractually to deal with the matter. Our action plan this week is as follows; 1. Complete the grout injection as originally specified – in speaking with the retaining wall contractor, he requires this to be done in any case to mitigate risk of the existing retaining wall moving. 2. Agree a retaining wall design with the engineer to install between the existing retaining wall and the building. Overall, we are relying on you to deal with Arthur to agree an outcome that suits this situation. From a commercial stand point should discussions be protracted, then we will proceed with an alternative solution which enable us to continue with the works and in doing so we will be mindful of costs at all times. I will be on site after my meeting with the engineer after which we will prepare our advice on the options that we can proceed with.82 84 Mr Parin was taken to the first [2] in that email83 which referred to the installation of concrete cavity filled wall in the unit in the 82 TB 66. -- 17 of 60 -- [2026] WASC 244 HOWARD J Page 18 north-west part of the Property.84 Rather than immediately accepting that he had rejected that solution, Mr Parin adopted the more passive voice that the option 'wasn't a preferred option' because there were issues surrounding the minimum size of the storeroom.85 85 That reflected, to my observation, Mr Parin's attempts to avoid answering directly the question of whether he had decided not to pursue Option 3 by describing it passively as not the 'preferred option' so as to avoid, to his perception, weakening his own case. 86 Mr Parin was asked in cross-examination whether the Builder, in the last two paragraphs of that email, was telling him that it would continue to build without a solution having been found to the concerns about the Retaining Wall.86 Mr Parin did not accept that the Builder could start building without solving the issue of the Retaining Wall.87 And yet, clearly to Mr Parin's knowledge, I find that is what happened, without any complaint by Mr Parin. 87 On 9 October 2017, Mr Lamattina sent an email to the Engineer at 8.34 am (copied to Mr Parin).88 Mr Lamattina's email was sent as a response to the Engineer's 4 October 2017 email.89 88 Mr Lamattina's 9 October 2017 email relevantly said: After meeting with David (Client) and Arthur (Neighbour) last Wednesday, it is apparent that Arthur is not interested in participating financially to deal with the failings of his retaining wall and at this stage will not allow us to deal with it from his side. David would prefer not to install a concrete filled cavity wall as part of the building so I am left trying to find a solution that fits within 90-100mm! Are we able to catch up this morning for a quick chat on possible solutions? Option 1: I have attached an idea that possibly might work which incorporates Tbar Posts which is partly cut into the Limestone Blocks with concrete panels in between. 83 TB 66 at PDF page 1; ts 185. 84 ts 185. 85 ts 185. 86 ts 186. 87 ts 186. 88 TB 64. 89 TB 49 and it then forms part of TB 64. -- 18 of 60 -- [2026] WASC 244 HOWARD J Page 19 Option 2: Speaking with John from BMC, his retaining wall solution uses 200UB posts but as an alternative, we would like to incorporate a smaller 150UB but he requires engineers guidance on this. Our intention is merely to install a retaining wall to protect the 8m of boundary wall that we are building for Unit 4 at the rear given that the remaining limestone retaining wall appears to have stood the test of time over the last 10+ years.90 (emphasis in the original) 89 Mr Parin accepted the statement '[Mr Parin] would prefer not to install a concrete filled cavity wall as part of the building'91 was consistent with his discussions with the Builder.92 90 And further, it was accepted in closing by the plaintiffs that the first two paragraphs written by Mr Lamattina in his email of 9 October 201793 were accurate.94 91 I find that Mr Lamattina accurately recorded Mr Parin's 'preference', and find that Mr Lamattina's statement that he was trying to find a solution of 90 - 100 mm is further evidence that Mr Parin had not accepted Option 3, in either of its iterations, by this time on 9 October 2017. 92 As referenced in 'Option 1' in the 9 October 2017 email,95 Mr Lamattina attached to his email two drawings he had made.96 93 By unchallenged evidence, Mr Lalli described in more detail the options being put forward by Mr Lamattina in his 9 October 2017 email.97 94 Mr Lalli did not recommend either of the solutions as drawn by Mr Lamattina,98 although Mr Lalli was unable to say when he had effectively rejected those solutions. Mr Lamattina's evidence was to 90 TB 64 at PDF page 1. It is to be noted that these two options are different from the three options I identified above. 91 TB 64 at PDF page 1. 92 ts 186. 93 TB 64 at PDF page 1. 94 ts 516. 95 As quoted in [88] above. 96 TB 64 at PDF pages 3 and 4. 97 Exhibit H [63] and [64]. 98 Exhibit H [64] - [66]. -- 19 of 60 -- [2026] WASC 244 HOWARD J Page 20 similar effect.99 Mr Parin's evidence, also, was that Mr Lalli had rejected that option put by Mr Lamattina.100 95 I find that at about 9 October 2017, Mr Parin knew that Mr Lalli had, in effect, rejected Mr Lamattina's options in Mr Lamattina's email of 9 October 2017, including those captured in his drawings. 96 Mr Parin's evidence in cross-examination, following receipt of the Builder's 9 October 2017 email at 8.34 am, was that no one ever came back to him with a 'solution'.101 97 Subsequently to those two emails, on 9 October 2017, Mr Parin, Mr Lamattina and Mr Lalli met at the Builder's office.102 98 Mr Parin, in cross-examination, was asked questions about what was said at the meeting of 9 October 2017.103 99 Mr Parin denied that the outcome of the meeting with Mr Lamattina and Mr Lalli on 9 October 2017 was that Mr Parin should continue to monitor the rotation of the Retaining Wall.104 100 On 9 October 2017 at 5.41 pm the Builder sent to Mr Parin an email105 which, on its face, was sent after the meeting on 9 October 2017. Mr Lamattina in that email stated, relevantly, the following: From our meeting today I have the following outcomes; 1. We will proceed with the construction programmed as designed with regard to the retaining wall issue being reviewed by MA Lalli with the following clarifications; 1. We will proceed to cover the grout block area with an additional leaf of brickwork to the outside face of the ground floor in lieu of installing the flashing as noted on the plans. 2. I will confirm with John from BMC the need to bridge the gap between the brickwork and the grout block face.106 99 ts 461 - 462. 100 ts 232, 278. 101 ts 231. 102 SOC [18DAA]; Defence [9.1(j)]. 103 ts 231, 232, 234 - 235. Indeed, Mr Parin was cross-examined on other emails which were sent or exchanged on 9 October 2017: ts 229. 104 ts 242 - 243. 105 Email between Mr Parin and Mr Lamattina dated 9 October 2017 (Exhibit I). 106 Exhibit I. -- 20 of 60 -- [2026] WASC 244 HOWARD J Page 21 101 That email was not copied to the Engineer, and it was not put to Mr Lalli in cross-examination. I find that the Builder's 9 October 2017 email sent at 5.41 pm was never sent to the Engineer and that the Engineer did not have any knowledge of its contents. 102 The plaintiffs had not discovered that email (from the Builder to Mr Parin sent on 9 October 2017 at 5.41 pm). That is notwithstanding that Mr Parin was asked questions in cross-examination about what had occurred in that meeting, and indeed, about other emails of that day. It was produced in Court for the first time in the cross-examination of Mr Lamattina and became Exhibit I. 103 Counsel for the plaintiffs told me that Exhibit I had been emailed to him on Sunday, 24 May 2026, the day before it was put to Mr Lamattina in cross-examination. It was unclear whether the plaintiffs' representative had prior notice of it during the course of the proceedings before the trial. No explanation was proffered as to why it had not been discovered. 104 Mr Parin accepted that at this time on 9 October 2017 the neighbour had rejected any action or activity on his property.107 I accept that to be the case. Further, I find that was Mr Parin's and the Builder's understanding by that date, if not well before. 105 Mr Parin's evidence was that he did not receive any drawings or any other options for stabilising the Retaining Wall after 9 October 2017.108 I find that to be the case. 106 Further, Mr Parin's evidence was that there was no written communication from him to either the Builder or the Engineer pursuing any extra or different option between 9 October 2017 and 15 January 2018.109 I find that to be the case. 107 I find that work proceeded at the Property from 9 October 2017 with Mr Parin's knowledge and acceptance that Option 2 from the Engineer's email of 4 October 2017 was being implemented, without any other 'solution' being awaited or expected. 107 ts 185; Defence [9.1(d)]. 108 ts 278. 109 ts 281. -- 21 of 60 -- [2026] WASC 244 HOWARD J Page 22 108 On 9 and 10 October 2017, BMC Grout Injection Specialists Pty Ltd (BMC) carried out the microfine cement grout injection under the Retaining Wall (Grout Block).110 109 It was not in dispute, and I find, that the Grout Block was injected from the Property's side under the Retaining Wall on the neighbour's side. 110 I find that BMC was a specialist operator in chemical grout injection and that the Engineer had, in effect, no role in BMC's works on 9 and 10 October 2017.111 There was no challenge to these propositions by the plaintiffs. 111 On 11 October 2017, there was an exchange of emails between the Engineer and Mr Parin.112 112 The first was sent by the Engineer at 1.05 pm and stated: Confirming that the post and panel wall in front of the grout stabilised section below the existing limestone retaining wall is used for protecting the exposed grout block face from the weather and is not a "retaining wall" per se. The option of using a galvanised steel post set into a concrete encasement, sized as per our detail, is considered to be adequate. I would suggest a 100UC14.8 as a post and embed say 75% of the height above the ground. (The 100UC14.8 is the smallest UC that is made.) Pouring a cement slurry behind the panels to ensure no voids behind is ideal.113 113 Mr Parin responded on 13 October 2017 and said: Thanks for your advise [sic], we are looking to maximise the bin storage area. Would it be possible to use 75mm PFC welded back to back with 75% embedment invaded in concrete.114 114 The Engineer's response on 13 October 2017 is not presently material. 110 SOC [18DAB]; Defence [18C.3]. 111 Defence [18C.4]; Exhibit H [81] - [82]; ts 248. 112 TB 68. 113 TB 68 at PDF page 2. 114 TB 68 at PDF page 1. -- 22 of 60 -- [2026] WASC 244 HOWARD J Page 23 115 Without making too much of Mr Parin's email quoted immediately above, it is indicative of the fine margins at the Property and around the NW Unit. 116 As noted above, following the meeting on 5 October 2017, Mr Naoum, on 18 October 2017 sent an email to the Builder which said, in part: As we have not had any response from you or the Owner relating to the limestone foundation discussed at the above meeting we assume you are both satisfied with it's [sic] condition, particularly since major earthworks have since commenced and are well in progress. Would you be kind enough to confirm this please?115 117 On 20 October 2017 at 12.39 pm, the Builder sent an email to Mr Naoum which was copied to John Velios, a structural engineer retained by Mr Naoum, and to Mr Parin.116 That email stated: We have successfully commenced preliminary works by undertaking chemical injection and partial siteworks and yesterday the grout works were given the all clear by our subcontractors. Whilst we are progressing carefully to proceed with our works, we maintain that we are not taking responsibility for the limestone wall should it continue to fail without impact from our works. We have undertaken a dilapidation assessment and will continue to monitor the wall throughout the course of construction. Beyond this, I understand that David Parin will continue to monitor the limestone wall for signs of further movement. I trust that this adequately deals with any concerns regarding our works in relation to our previous advice detailing the inadequate nature of your retaining wall adjacent to our building works.117 118 Mr Velios then responded to that email on the same day.118 Relevantly, that email stated: 5. David Parin is not to monitor the limestone retaining wall – this is to be undertaken by the suitably qualified, professional 115 TB 63 at PDF page 2. 116 TB 63 at PDF pages 1 - 2. This email was part of a chain which had started on 7 October 2017 with an email from the Builder to the neighbour; TB 63 at PDF page 3. 117 TB 63 at PDF page 2. 118 TB 63 at PDF page 1. -- 23 of 60 -- [2026] WASC 244 HOWARD J Page 24 independent firm engaged to undertake the dilapidation survey. (please provide details)119 119 Mr Parin denied that he had discussed that he would monitor the wall with Mr Lamattina or Mr Lalli,120 notwithstanding the text of the Builder's email of 20 October 2017.121 120 Mr Parin sought to explain why he had not challenged the statement in the Builder's email of 20 October 2017 by pointing to Mr Velios' response, which stated that he (Mr Parin) was not to monitor the wall.122 Mr Parin then sought to give evidence that he did not know 'what monitoring means'.123 121 In closing, the plaintiffs submitted that Mr Parin had not responded to the statement made by the Builder's email as to his monitoring because he was leaving that issue at the rejection made by the neighbour's engineer.124 I do not accept that explanation. 122 To my observation, for Mr Parin to have left the issue for that reason would not be in keeping with the force of his personality and the concern for detail that he exhibited in respect of the Development. 123 There are two matters of significance to Mr Parin's evidence about whether, following the site inspection on 2 October 2017 or the Engineer's 4 October 2017 email or before the Builder's email of 20 October 2017, he was to monitor the Retaining Wall going forward. 124 The first is in the way he gave that evidence and whether it reflects more generally on the reliability of his evidence in contested matters. 125 The second is that if Mr Parin had been told to, and had agreed to, monitor the Retaining Wall going forward it would support the finding that he had made the decision in October 2017 to continue with the Development notwithstanding that the problems with the Retaining Wall had not been resolved and that he had decided not to adopt a different design of the western-most wall of the NW Unit. 119 TB 63 at PDF page 1. 120 ts 183, 244. 121 TB 63 at PDF pages 1 - 2. 122 ts 245. 123 ts 245. 124 ts 539. -- 24 of 60 -- [2026] WASC 244 HOWARD J Page 25 126 In my view, the surrounding circumstances and plausibilities support a finding that Mr Parin was both told to monitor the Retaining Wall by the Engineer and agreed to do so. They are: 1. the option to remedy the Retaining Wall from the neighbour's side was not available; 2. Mr Parin had rejected any option to modify the design of the western-most wall on the NW Unit; 3. the Engineer's advice that the Retaining Wall would continue to rotate towards the Property; and 4. that the rotation was occurring at a slow or glacial pace. 127 In my view, it makes complete sense, and is the only plausible conclusion, for the Engineer to have recommended that the Retaining Wall continue to be monitored into the future to ensure that if the rotation continued then further steps could be taken before the Retaining Wall touched the Development. 128 It is also of some significance that Mr Lalli's evidence about the advice he gave on monitoring (as noted in [53] above) was not challenged in cross-examination. 129 It is not quite the case that nothing else could be done in October 2017. That is because, as was ultimately the case, Mr Parin could have pursued the avenue of persuading the City of Stirling to take action against the neighbour in respect of the Retaining Wall. Rather, it was a case that in the absence of his doing that there was nothing else to do in the circumstances set out in [126] above. 130 Following a request from Mr Parin125 the Engineer sent him an email 23 October 2017126 which stated: Further to our site inspection on the 2nd October of the boundary retaining wall, together with your neighbour and the builder, Michael Lamattina, we confirm that the limestone retaining wall on the western boundary is considered to not be structurally adequate for the height retained. The wall constructed from 350 x 350 x 1000 reconstituted limestone blocks, exhibited cracking and a slight rotation at one location to the rear of the site. 125 Exhibit H [86] - [87]. 126 TB 70. -- 25 of 60 -- [2026] WASC 244 HOWARD J Page 26 Further, the wall had little to no embedment and was constructed using only one leaf of blocks with no backing blocks.127 131 It was not suggested that any of the contents of this email from the Engineer was new information for Mr Parin or was not known previously by Mr Parin. 132 Mr Parin's evidence was that he did not recall asking Mr Lalli to send him that email.128 It is unclear from the evidence why Mr Parin requested this email from the Engineer and I make no finding as to why he did so at that time. 133 I find that no other 'option' was put to Mr Parin after October 2017 to deal with the Retaining Wall or to change the design construction of the western-most wall of the NW Unit. I understood that was accepted by the plaintiffs in closing.129 134 From late October 2017, the Builder carried out works at the Property.130 135 On about 2 November 2017, the Builder provided Mr Parin with a construction program for the building work131 which provided for the building work to be commenced on about 6 November 2017 and completed by about 11 January 2019. This was defined by the plaintiffs as the Construction Program.132 136 It appears to be common ground that the Builder constructed the 'post and panel wall' on the Property in front of the Retaining Wall which had been injected.133 137 By about the end of November 2017, the footings and slabs were poured, including for the NW Unit.134 138 On 19 December 2017, Mr Parin sent an email to the Builder, which referred, amongst other things, to the slabs having been 127 TB 70. 128 ts 252. 129 ts 513. 130 SOC [18DAE] - [18DAG]. 131 TB 82; SOC [18]. 132 SOC [18]. 133 SOC [18DAC]. 134 TB 88 - TB 92; Exhibit A [73]. -- 26 of 60 -- [2026] WASC 244 HOWARD J Page 27 poured.135 The email contained a number of items which were of concern to Mr Parin. 139 At point 6 of his 19 December 2017 email,136 Mr Parin said: 'Insufficient Chemical injection to the Northern Western boundary and areas of undermining to existing adjoining retaining wall.'137 140 Mr Lamattina responded on 22 December 2017138 and incorporated his responses into Mr Parin's email by text in a differently coloured font. In responding to Mr Parin's point 6, Mr Lamattina said: This query has been considered and primarily, multiple inspections from BMC including the attached report confirming BMC are satisfied with the installation of their injection. Subsequent steps will be parging and waterproofing of the brick wall up to the level of the grout block with a protective layer of coreflute and mortar/slurry fill of the cavity between these two faces. We are satisfied that in the event that the grout block fails we have the recourse with their insurers but nevertheless we provide no undertakings that the retaining wall itself will not continue to move towards your building.139 141 Mr Parin accepted in cross-examination that he was not surprised at that time that there was a continuing risk that the Retaining Wall may continue to move towards the Property as previously identified by Mr Lalli.140 142 Mr Parin's evidence then was: In January 2018 I was looking at the works under the Retaining Wall, where the grout injection had not been covered and contacted Mr Smith to ask if the Engineer could do a site inspection before the brickwork was started to cover the area to make sure it was alright to continue the work as planned.141 143 Mr Parin's evidence initially in cross-examination was that he had asked Mr Lalli to come to the Property because of his concerns about the 'pockets' he had identified in the Grout Block and the undermining 135 TB 97 at PDF page 2 and following. 136 TB 97 at PDF page 3. 137 TB 97 at PDF page 3. 138 TB 97. 139 TB 97 at PDF page 3. 140 ts 261. 141 Exhibit A [78]. -- 27 of 60 -- [2026] WASC 244 HOWARD J Page 28 of the Retaining Wall,142 and that his concerns were based on the appearance of the face of the Grout Block.143 144 On the second day of his cross-examination, Mr Parin's evidence was somewhat different in that he said that the meeting on 15 January 2018 was due to Mr Lamattina's response (of 22 December 2017)144 to Mr Parin's point 6.145 I consider this difference is not of importance. 145 On 15 January 2018, Mr Lalli conducted an inspection of the Property with Mr Parin and Mr Smith.146 146 I find that the state of the Property, relevantly, at the time of inspection on 15 January 2018 was as per photos taken by Mr Parin on the afternoon of 16 January 2018.147 147 For present purposes, the state of the Property was that: 1. the slab for the NW Unit had been poured, and the plumbing stubs were part of the slab;148 2. the post and panel wall had been installed; and 3. the Grout Block was still exposed immediately at the western side of the poured slab and below the Retaining Wall. 148 Mr Parin's recollection of the meeting at the Property on 15 January 2018 was limited to there having been three items discussed, namely the Grout Block under the Retaining Wall, the Retaining Wall and the post and panel wall.149 149 It is not particularly significant what any one witness remembers of the meeting on 15 January 2018 because of the Engineer's subsequent email. 150 On 15 January 2018, after the site inspection, the Engineer sent an email to the Builder at 11.40 am, which was forwarded to Mr Parin shortly afterwards (Engineer's 15 January 2018 email).150 142 ts 261 - 262, 279 - 280. 143 ts 262. 144 TB 97 at PDF page 3. 145 ts 279 - 280. 146 SOC [18DA]; Defence [18DA]. 147 TB 102 - 104. 148 ts 284, ts 285. 149 ts 172. 150 TB 101. -- 28 of 60 -- [2026] WASC 244 HOWARD J Page 29 151 The Engineer's 15 January 2018 email is central to the plaintiffs' case against the Engineer. It read in full as follows: Further to the site inspection earlier this morning, it is understood that areas of the grout injection under the existing limestone retaining wall to the left rear of the above site, particularly adjacent to the proposed cavity wall on the boundary, has isolated small areas where the grout may not have fully penetrated. I understand that the grout block in this area has a minimum of 300mm embedment below the footing of the residence. The depth of the grout block under the limestone wall could not be confirmed. Providing the depth of the grout block under the wall is as proposed by Bradford Retaining, then the long term stability and durability of the grout block and the limestone retaining wall over is considered to be structurally adequate. In order to enhance the long term durability of the grout block, it is proposed that the remaining gap between the external leaf of the cavity wall and the grout block be filled with a sand/cement slurry. Further, where the concrete post and panel system has been used for protection of the grout block in front of existing limestone retaining wall, sand has been used as the back fill for the remaining gap. It is suggested that to prevent any possible erosion of the sand back fill, the top 150mm of the sand fill be removed and replaced with a sand/cement cream mortar.151 (emphasis added) 152 The emphasised words in the above quotation, as will be seen, are essentially the whole of the plaintiffs' case against the Engineer, and I will refer to them from here as the Statement. 153 Mr Parin's evidence was that the Statement was saying that both the Grout Block and the Retaining Wall separately were 'structurally adequate'.152 I took that to be evidence as to how Mr Parin read the Statement at the time. 154 In cross-examination, Mr Parin did not accept that the Statement started with a 'proviso' which represented some qualification to the Statement.153 To my observation, in giving this evidence Mr Parin very much appeared to be trying to hold the line against the plain words 151 TB 101. 152 ts 265 - 267. 153 ts 265, 266. -- 29 of 60 -- [2026] WASC 244 HOWARD J Page 30 because he perceived an acceptance of the proposition being put to him would weaken his case. With respect, I would not accept that Mr Parin now, or then, read the plain words and did not understand that Mr Lalli was stating expressly an assumption on which the rest of the Engineer's 15 January 2018 email was written. 155 Mr Parin's evidence was that there was no discussion with Mr Lalli on 15 January 2018 as to how the depth of the Grout Block under the Retaining Wall could be confirmed.154 Mr Parin's evidence was to the effect that he did not seek confirmation (from anyone) as to the depth of the Grout Block following receipt of the Engineer's 15 January 2018 email.155 156 There was no evidence of Mr Parin doing anything in response to the Engineer's 15 January 2018 email or to the Statement more specifically. 157 I consider separately below whether the Statement was relevantly misleading and deceptive or was likely to mislead and deceive. 158 What, if any, reliance the plaintiffs placed on the Engineer's 15 January 2018 email is contentious and is considered below. 159 It appeared to be common ground that the Builder completed the brickwork to plate height on the ground floor around the end of March or beginning of April 2018. 160 On or about 23 May 2018, the plaintiffs served a notice to remedy breaches of the Building Contract on the Builder.156 161 On 8 June 2018, the plaintiffs served on the Builder a notice purporting to terminate the Building Contract.157 162 The Builder at the time did not accept that the plaintiffs were entitled to terminate the Building Contract.158 Rather, the Builder treated the 'purported' termination by the plaintiffs as a repudiation of the Building Contract, which it accepted and so, brought the Building Contract to an end.159 154 ts 269. 155 ts 269 - 270. 156 TB 143; Exhibit A [102]; SOC [44]; first defendant's defence [61]. 157 TB 168; Exhibit A [108]; SOC [46]. 158 First defendant's defence [66(a)]. 159 First defendant's defence [66(b) and (c)]. -- 30 of 60 -- [2026] WASC 244 HOWARD J Page 31 163 As noted, in the course of the trial the plaintiffs and the Builder effectively settled the claim and counterclaim between them, so I do not need to determine how the Building Contract came to an end. 164 Nonetheless, it was common ground between the plaintiffs and the Builder while the claim against the Builder was ongoing (and also between the plaintiffs and the Engineer for that matter) that the Building Contract came to an end on 8 June 2018. Whatever the precise mechanism that led to the termination of the Building Contract, it is clear, and I find, that its termination was initiated by Mr Parin. 165 On 25 June 2018, these proceedings were commenced against the Builder by writ. 166 The Builder filed a Notice of Cessation with the City of Stirling dated 8 November 2018.160 167 Mr Parin did not engage another builder to complete the Development after the termination of the Building Contract.161 168 There was no evidence that Mr Parin took any steps in relation to the Property following the termination of the Building Contract prior to about 20 November 2018.162 I find accordingly. 169 On about 20 November 2018, Andrew van der Meer, a structural engineer, attended the Property and advised Mr Parin that the Retaining Wall was rotating towards the NW Unit on the Property163 and sent a report dated 12 December 2018 to the plaintiffs.164 170 Mr Parin gave very general evidence of attending the Property on 20 November 2018 with Mr van der Meer where various issues were discussed, the main item of which was the Retaining Wall.165 171 It is significant to note here that until shortly before the trial the plaintiffs were proposing to call Mr van der Meer to give evidence including as to the reports he had prepared for the plaintiffs. It is now unimportant whether the plaintiffs had proposed to lead that evidence as expert opinion evidence or to lead evidence from Mr van der Meer as a witness of fact, or some combination of the two. 160 TB 171. 161 ts 173, 302. 162 ts 533 - 534. 163 SOC [18DCD]. 164 TB 183; SOC [18DCD]. 165 ts 172. -- 31 of 60 -- [2026] WASC 244 HOWARD J Page 32 172 The Court was told on 27 February 2026 that Mr van der Meer would not be called as a witness in any capacity. Further, the plaintiffs accepted that any reports of his sought to be tendered would be admitted for the fact, if relevant, that they were made at the time rather than being led as to the truth of their contents or as being admissible as expert opinion evidence.166 173 The plaintiffs confirmed in closing that they were not relying on Mr van der Meer's report or anything he said to establish the truth of what was there contained or said.167 174 The effect of that is that there is no evidence before the Court establishing that anything contained in a report or statement made by Mr van der Meer was evidence as to its truth - whether by expert opinion evidence, or evidence going to a matter of fact. 175 On about 14 December 2018, Mr Parin communicated with the City of Stirling.168 That communication with the City of Stirling by Mr Parin attached the Engineer's 4 October 2017 email and Mr van der Meer's report of 12 December 2018. 176 Again, where Mr van der Meer was not called, his report gains no more weight by having been sent by Mr Parin to the City of Stirling. 177 In cross-examination, Mr Parin was questioned as to why he had not sent a more complete account of the situation to the City of Stirling.169 However, in the circumstances, I consider I do not need to reach any view about Mr Parin's motivations at that time. 178 On about 28 September 2021, the City of Stirling issued a Building Order to the neighbour in relation to the Retaining Wall.170 179 Further, the following notices were pleaded by the plaintiffs as being issued by the City of Stirling, namely: 1. a notice of withdrawal of building approval certificate dated 25 March 2022;171 and 2. a second Building Order on about 20 April 2022.172 166 ts 67. 167 ts 543. 168 TB 184; SOC [18DCE]. 169 ts 297. 170 TB 193; SOC [18DD]; Defence [18DD]. 171 TB 195; SOC [18DE]. -- 32 of 60 -- [2026] WASC 244 HOWARD J Page 33 180 It is pleaded that the owners of the neighbouring property complied with the second Building Order.173 That was not in dispute, and I find it to be so. 181 As noted above, on 25 March 2022, the City of Stirling issued a notice by which it withdrew the Building Approval Certificate in relation to the Retaining Wall.174 This notice identified that the Retaining Wall did not have backing blocks and was rotating and moving in an easterly direction. 182 I find, as the plaintiffs pleaded, that the Property was sold in July 2025 for $2,100,000 to Finnigan Group Pty Ltd and Converge Site Service Pty Ltd.175 183 I find that the construction at that time remained at the stage of completion it had been when the Building Contract was terminated on 8 June 2018.176 Mr Parin as a witness 184 As may be seen from the above, there were only a few issues of fact which turned on contested evidence. Consequently, there are only a few areas in respect of which I need to assess Mr Parin's credibility and reliability as a witness. 185 Mr Parin, in giving his evidence, reflected his strong belief in, and commitment to, his case. He had an inclination to argue that case with questioning counsel. That tendency militated against the acceptance of his evidence on contested matters as being reliable. However, for the most part where I have not accepted Mr Parin's evidence it is because of the contemporaneous documents and surrounding circumstances. The plaintiffs' case against the Engineer 186 The plaintiffs' case against the Engineer is that the Statement made the following representations; namely that: 18EA.1 the deficiencies in the Retaining Wall had been rectified, so that it was structurally adequate by at 15 January 2018; 172 TB 196; SOC [18DEA]. 173 SOC [18DF]. 174 TB 195. 175 TB 202; SOC [48]; Defence [48]. 176 SOC [49]; first defendant's defence [71]. -- 33 of 60 -- [2026] WASC 244 HOWARD J Page 34 18EA.2 it was acceptable for the First Defendant to continue construction of the Development without the Second Defendant strengthening the design to deal with any loading of the new construction; … (defined in the SOC as Engineer Representations).177 187 As will be seen, it does not make any difference to the success of the plaintiffs' case, but there is a third representation pleaded at SOC [18EA.3] which is not within the defined Engineer Representations; namely that: 'the Development had been constructed in accordance with the [particularised] structural drawings.' 188 As was implicit in the pleas at SOC [18EA.1] and [18EA.2], but made express in the plaintiffs' opening submissions at [9],178 and the plaintiffs' closing submissions,179 the plaintiffs' case against the Engineer is narrowly focused on the Engineer Representations which were pleaded to be made by the Statement, which, as quoted above, read: Providing the depth of the grout block under the wall is as proposed by Bradford Retaining, then the long term stability and durability of the grout block and the limestone retaining wall over is considered to be structurally adequate.180 189 It is significant to note that SOC [18EA] - [18G] only appeared in their final form in the last iteration of the SOC, filed first as a minute on 20 April 2026. That makes a clear reading and understanding of aspects of the final SOC difficult.181 190 The Engineer Representations are pleaded182 to have been made by the Engineer 'acting' as per certain paragraphs in the SOC; and in certain 'circumstances' as per other paragraphs of the SOC. 191 Turning first to the pleaded acts: a number were pleaded in SOC [18EA] by referencing other paragraphs, but the majority of them were 177 See also SOC [18F]; these are denied by the Defence [18EA], [18F]. 178 Plaintiffs' opening submissions. 179 ts 506. 180 TB 101. 181 See, for example, the difficulties identified in the second defendant's closing submissions [29]. 182 SOC [18EA]. -- 34 of 60 -- [2026] WASC 244 HOWARD J Page 35 not pressed by the plaintiffs by their closing submissions.183 The remaining are the following: 1. SOC [18DA]: this pleads that on about 15 January 2018, the Engineer conducted a further site inspection with Mr Parin and the Builder to inspect the Retaining Wall and provide advice in relation it; 2. SOC [18DB]: this pleads that, after the site inspection, the Engineer sent the 15 January 2018 email;184 and 3. SOC [18CB]: this pleads that the Engineer sent its 4 October 2017 email.185 192 Turning to the pleaded circumstances: they again were pleaded in SOC [18EA] by reference to other paragraphs in the SOC. By the time the plaintiffs' closing submissions were filed on 29 May 2026, a number of those pleas were effectively abandoned.186 The remaining circumstances (in which those pleaded acts occurred) are pleaded by reference to: 1. SOC [3A]: which pleads that the Engineer was duly incorporated and trading as Consultant Chartered Engineers; 2. SOC [3B]: which pleads that the Engineer was at all material times engaged in trade or commerce; and 3. SOC [8A] - [8C]: these plead: i. the Engineer's proposal sent to the plaintiffs on about 15 September 2025;187 ii. the scope of works agreed between the Engineer and the plaintiffs;188 iii. statements made on the Engineer's website prior to its engagement;189 183 Plaintiffs' closing submissions filed 29 May 2026 (plaintiffs' closing submissions) [10]. 184 TB 101. 185 TB 49. 186 Plaintiffs' closing submissions [10] and [11]. 187 TB 4; SOC [8A]. 188 SOC [8B]. 189 SOC [8C]. -- 35 of 60 -- [2026] WASC 244 HOWARD J Page 36 iv. that the plaintiffs engaged the Engineer and reposed trust and confidence in it;190 and v. that between 11 November 2015 and 24 July 2017, the Engineer prepared structural drawings, which were relied upon by the City of Stirling to issue a building permit dated 19 September 2017.191 193 The plea in SOC [18EA] had also sought to rely on the following paragraphs of the SOC as relevant circumstances. However, they were not included in the plaintiffs' closing submissions where they identified the circumstances relied upon.192 Although I note them below, I have treated them as having been abandoned by the time of the plaintiffs' closing submissions. They were: 1. SOC [18A] - [18B]: these pleaded the site inspection on 2 October 2017 and the matters which it is pleaded the Engineer identified on that date; and 2. SOC [18D] - [18E]: these are 26 paragraphs of the SOC, many of which have subparagraphs within them. I have not attempted to summarise them here, other than to note that they pleaded matters from about 4 October 2017 until August 2023. However, I note that the pleas in SOC [18EA] concern the Engineer Representations per the Statement contained within the Engineer's 15 January 2018 email. 194 Notwithstanding the complexity introduced by the chapeau to SOC [18EA] of the SOC, ultimately the Engineer acting as per certain paragraphs and making the Representations in certain circumstances as pleaded added nothing to the plaintiffs' case nor to the determination of the matter. 195 The plaintiffs pleaded that: 1. the Engineer Representations were misleading or deceptive or likely to mislead or deceive: SOC [18F];193 and 2. by reason of the misleading or deceptive conduct the plaintiffs suffered loss and damage.194 190 SOC [8D]. 191 TB 44; SOC [8E]. 192 Plaintiffs' closing submissions [10] and [11]. 193 This plea is denied by the Engineer: Defence [18F]. -- 36 of 60 -- [2026] WASC 244 HOWARD J Page 37 What the plaintiffs' case is not 196 It is, at this point, also important to be clear as to what does not form part of the plaintiffs' case. 197 Mr Parin sought to give evidence that at different times from 4 October 2017 he was waiting on the Builder and, or, the Engineer to propose to him a 'solution' to the problems identified by the Engineer's 4 October 2017 email.195 198 I do not accept that evidence from Mr Parin. Principally, that is because Mr Parin at no stage sought any further solution or option from the Builder or the Engineer. That is in circumstances where he was at the Property on most days, if not daily, and was intimately concerned with the Development. It is simply not plausible that if Mr Parin was truly waiting on the Builder or the Engineer in such a material respect, he did nothing to follow either of them up. 199 However, even if I were to accept that evidence and find that was the case, the plaintiffs accepted in closing that there was no case put against the Engineer that there was some positive duty to warn or advise Mr Parin subsequently to October 2017, or at any time.196 200 Further, there was no pleaded case against the Engineer, nor the Builder for that matter, that there was any duty, either contractual in nature or at general law, to work on and, or, to provide to Mr Parin some 'solution' to the problems identified by the Engineer's 4 October 2017 email. 201 And, naturally enough, if there was no such duty or obligation then there could be no breach of the same. 202 Whether or not the Builder, via Mr Lamattina's communications, indicated to the plaintiffs that it was seeking to find such a solution is neither here nor there as against the Engineer. 203 The plaintiffs in their closing submissions appeared to make it plain that they were not asserting that the Engineer had an obligation to do something about a different design or construction plan in January 2018,197 although there were hints throughout the plaintiffs' 194 SOC [18G]; see also SOC [51A]. This plea is also denied by the Engineer: Defence [18G] and [51A.3]. 195 See. for example, ts 232. 196 ts 542 - 543. 197 ts 511. -- 37 of 60 -- [2026] WASC 244 HOWARD J Page 38 closing submissions at the idea that Mr Parin was relying on the Engineer and/or the Builder to propose a solution. 204 As to the modified Option 3, the plaintiffs for the first time in closing sought to advance the case that modified Option 3 could have been built on the slab as poured without requiring further architectural drawings. 205 In doing so, the plaintiffs sought to place great weight on one answer of Mr Lalli in cross-examination198 I have set out the exchange in full: MR RUMSLEY: So that – effectively, the concrete-filled cavity is an option?--- MR LALLI: Yes. MR RUMSLEY: And then, another option is - - -?--- MR LALLI: Concrete block. MR RUMSLEY: - - - the use of those core-filled core blocks?--- MR LALLI: That's correct. MR RUMSLEY: And effectively, you have put both of those into this communication?--- MR LALLI: That's right. MR RUMSLEY: And the reason for the second was to deal with the issue in relation to store size, so that you could carry out a solution, but without the impact on the size of the room. Is that correct?--- MR LALLI: That's correct, yes. Yes.199 (emphasis added) 206 I do not think that answer of Mr Lalli's can support some attempted re-formulation of the plaintiffs' case in closing. Firstly, that case was not clearly articulated, if at all, in the SOC, the plaintiffs' opening submissions, nor in their evidence. It is inconsistent with Mr Parin's own evidence as outlined in [71] above. And, in any event, Mr Parin had rejected both iterations of Option 3 as per his evidence outlined in [68] above. 198 Plaintiffs' closing submissions filed on 29 May 2026 [24] and [62]. 199 ts 427. -- 38 of 60 -- [2026] WASC 244 HOWARD J Page 39 207 It was accepted by the plaintiffs in their closing submissions that they had not put to Mr Lalli200 that the second iteration of his Option 3 could have been built after 15 January 2018 and that the NW Unit would have remained code compliant.201 208 If the plaintiffs sought to advance a case that, after the slab had been poured, they could, and would, have altered the design of the NW Unit so that its cavity wall was differently constructed and able to withstand the load from the Retaining Wall rotating and leaning on it, I consider that expert evidence would have had to be called that such a re-design was possible and would be in keeping with the relevant building or residential code. 209 Significantly and, with respect, correctly, counsel for the plaintiffs did not contend that there was any evidence that Mr Parin had accepted the second iteration of Option 3 (namely, the reinforced core filled block construction).202 Indeed, as noted above, the evidence was that Mr Parin had rejected that as well. 210 It must be remembered, also, that Mr Lalli gave that answer by reference to the Engineer's 4 October 2017 email. It was not given in response to any question as to what was possibly able to be done as at, and from, 15 January 2018. 211 Another case not run by the plaintiffs was any case against the Engineer in respect of the NW Unit being loaded.203 That meant, absent the Retaining Wall rotating and touching the wall of the new construction, there was no allegation put as to there being any loading of the new construction by the neighbour's property and the Retaining Wall as at October 2017 or January 2018. I have proceeded on that basis. 212 That had the consequence, which was apparent from the SOC in any event, that no case was advanced against the Engineer that the design (to the extent represented by the Engineer's Drawings Rev 3) was not adequate or breached some obligation owed by it to the plaintiffs.204 200 ts 527. 201 ts 522. 202 ts 509. 203 ts 318. 204 ts 544 - 546. -- 39 of 60 -- [2026] WASC 244 HOWARD J Page 40 213 A further case not run by the plaintiffs is that, notwithstanding the second of the Engineer Representations (pleaded in SOC [18EA.2]), and as noted above, the Engineer had a responsibility, in contract or at general law, to supervise the Builder in any way or authorise or permit the Builder to conduct any of the building works in the Development. Did the Statement make the Engineer Representations and were they misleading or deceptive? 214 In its closing submissions, the Engineer relevantly submitted that the Statement did not make the Engineer Representations.205 That is because the Statement was made in the context of Mr Parin's concerns as to 'voids' or 'pockets' visible in the face of the Grout Block. The Engineer submitted that, in that context, the opinion provided by Mr Lalli in the Engineer's 15 January 2018 email was limited to 'whether the voids represent any deficiency in the Grout Block.'206 215 I do not find that the Statement made the Engineer Representations to Mr Parin. I would also reach that conclusion if the third representation207 was included in the defined Engineer Representations. 216 In approaching this, it is of significance to note and take into account: 1. the Statement was, effectively, only made to Mr Parin - it was not made to a wider audience. It may be accepted that the Engineer's 15 January 2018 email was sent only to the Builder. However, in all of the circumstances, I consider that the Engineer, in sending that email, would have correctly anticipated that it would be forwarded to Mr Parin or, at the very least, the contents would be communicated to him; and 2. Mr Parin's knowledge as at 15 January 2018, including what he had been told from 2 October 2017 onwards and the decisions he had made from that time. 217 The Engineer submitted that, when one had regard to the context of the site inspection on 15 January 2018, the substance of what the Statement represented and what was understood by Mr Parin was not misleading nor deceptive in the relevant sense.208 205 Second defendant's closing submissions [69] - [71]. 206 Second defendant's closing submissions [70]. 207 SOC [18EA.3]. 208 Second defendant's closing submissions [67]. -- 40 of 60 -- [2026] WASC 244 HOWARD J Page 41 218 That is, the Engineer submitted that Mr Parin's concern prior to that inspection was regarding 'pockets' or 'voids' he could observe in the Grout Block and his concerns about their 'undermining' of the Retaining Wall.209 219 Mr Parin, in his evidence, identified the pockets or voids he was concerned about210 by reference to the photographs he took on 16 January 2018.211 220 In my view, Mr Parin's concern about 'undermining' shaped and directed the text of the Engineer's 15 January 2018 email and Mr Parin's reading of it at the time. Its focus was very much on the Grout Block and its integrity. 221 In it, Mr Lalli stated an express assumption and so made plain the premise on which he was advising: namely that the Grout Block had a minimum of 300mm embedment under the Retaining Wall as was proposed by Bradford Retaining. 222 On the basis of that express assumption and premise, in response to Mr Parin's concerns as to the pockets or voids and whether there was 'undermining' of the Retaining Wall (caused by such voids or pockets), the Engineer made the Statement about the long-term stability and durability of the Grout Block. 223 Of course, the Statement included the words 'and the limestone retaining wall over' immediately after the reference to the Grout Block. However, I consider that in context what was being represented was, in effect, the Grout Block (on the express assumption and premise) is structurally adequate, and will not cause the Retaining Wall to fail or to not be structurally adequate. 224 I consider that is the only sensible way that, in all of the circumstances, objectively the Statement could be read. And I find that is the way it was read by Mr Parin at the time. 225 That is because the Grout Block had been proposed by the Engineer (by Engineer's Drawings Rev 3) when there was no concern, on anybody's part, that the Retaining Wall had rotated and may continue to do so. 209 See, for example, Mr Parin's point 6 in TB 97 at PDF page 3. 210 ts 259. 211 TB 102 - TB 104. -- 41 of 60 -- [2026] WASC 244 HOWARD J Page 42 226 By no later than 4 October 2017, Mr Parin had been told that the Grout Block, in and of itself, would not prevent the further rotation of the Retaining Wall. He had also been told by no later than 4 October 2017 that the absence of backing blocks to the Retaining Wall meant that it was not structurally adequate. 227 Further, by no later than 4 October 2017, Mr Parin had been given at least two options (Option 1 and Option 3 in either of its iterations) which would have either prevented the Retaining Wall from further rotating (Option 1) or would have made the new construction invulnerable to the Retaining Wall continuing to rotate to the point that it leant on the new construction and so loaded it (Option 3 both in its original and modified forms). 228 Mr Parin had not taken either of those options and so knew from 4 October 2017, at least, that the Grout Block (as planned from the time of the Engineer's Drawings Rev 3) would not cure the rotation of the Retaining Wall and its consequent structural inadequacy. 229 The plaintiffs, in my view, seek to read the words in the Statement about the Retaining Wall in isolation and seek to bypass the context against which the Engineer's 15 January 2018 email was written. Further, Mr Parin knew that nothing had been done at the Property since October 2017 that could have had any effect on the structural adequacy of the Retaining Wall itself. Further, the Statement had within it a stated premise or assumption which Mr Lalli could not confirm and in respect of which Mr Parin sought no other confirmation, from Mr Lalli or anyone else. 230 With that context, I do not consider that the Statement made either of the Engineer Representations, nor the third representation pleaded at SOC [18EA.3], if that is included within the defined representations. 231 The plaintiffs' pleaded case is that the Engineer Representations were relevantly misleading or deceptive in that the Retaining Wall: 18F.1 exhibited signs of rotation; 18F.2 was inadequately constructed and not supported by the required backing blocks; 18F.3 was subject to lateral loading from a number of trees and hedges on the adjacent property immediately behind the wall; 18F.2 appeared to have little embedment of the bottom blocks; and -- 42 of 60 -- [2026] WASC 244 HOWARD J Page 43 18F.3 exhibited signs of cracking with cracking visible in two locations; 18F.4 was leaning slightly towards the Property at its rear-most section; 18F.5 had been injected with microfine cement under the Retaining Wall from the Property side, which would not correct the problems with the Retaining Wall to make it stable; and 18F.5 would likely continue to rotate loading the Development requiring it to be strengthened.212 232 Strictly, I do not need to consider whether the Engineer Representations were relevantly misleading or deceptive in the way pleaded, as I have found that the Statement did not make them. 233 If I am wrong, however, and the Statement did make the Engineer Representations as pleaded in SOC [18F], then I do not consider that the Engineer's 15 January 2018 email misled or deceived Mr Parin, nor was likely to do so in the way pleaded. 234 In my view, each of SOC [18F.1] - [18F.5] was known to Mr Parin both before, and immediately after, the inspection of the Property on 15 January 2018 and the Engineer's 15 January 2018 email. 235 The first part pleaded in SOC [18F.6]213 was also known by Mr Parin (that the Retaining Wall would likely continue to rotate). Whether the fact that, if nothing else was done, it would necessarily, ultimately, load the NW Unit may not have been fully known or appreciated by Mr Parin. That is, it may have been his reasonable expectation that he would not allow the Retaining Wall to rotate that far. It was the case that the Retaining Wall, in the Engineer's opinion, would continue to rotate. However, it may not have been the case that Mr Parin would have allowed it to sufficiently rotate so as to lean on the new construction prior to Retaining Wall being stabilised. 236 In my view, even if the Engineer Representations were made by the Statement (against my finding in [230] above), Mr Parin knew that nothing had changed following the injection of the Grout Block and that nothing had changed by the time the Statement was made. 212 SOC [18F]. I note that the last subparagraph's numbering is an obvious typographical error, and I will refer to it as SOC [18F.6] from here. 213 That is the second SOC [18F.5]. -- 43 of 60 -- [2026] WASC 244 HOWARD J Page 44 237 However, as will be seen, if I am wrong in that conclusion, I do not consider that the plaintiffs relied in any meaningful way on the Statement or the Engineer Representations and I do not consider that they caused any compensable loss or damage to the plaintiffs whether as pleaded or otherwise. Did the plaintiff rely upon the Engineer's email 238 SOC [18G] is, on its face, a plea of the loss and damage suffered by the plaintiffs. However, it may be seen that SOC [18G] and its particulars are also effectively reliance and causation pleas rolled together. 239 The loss and damage pleaded in SOC [18G] was particularised as: 1. without the Engineer Representations, the plaintiffs would not have permitted the Builder to commence construction of the Development with the deficiencies in the Retaining Wall;214 2. rather, the plaintiffs would have insisted that the Engineer strengthen the design to adequately deal with any loading on the new construction if the Retaining Wall continued to rotate before continuing the construction of the Development;215 3. the Development had been partially built and could not be completed until the deficiencies in the Retaining Wall had been rectified;216 4. completion of the Development had been delayed;217 5. but for the Engineer Representations, completion of the Development would have occurred by 11 January 2019;218 6. settlement of the sales of Lots 7 and 8 would have occurred at some time in March 2019 at which time the plaintiffs would have received $1,225,500;219 7. Units 5 and 6 would have sold for $530,000 and $540,000 respectively by 11 May 2019;220 and 214 SOC Particulars [18G.1]. 215 SOC Particulars [18G.1]. 216 SOC Particulars [18G.2]. 217 SOC Particulars [18G.4]. 218 SOC Particulars [18G.5.1]. 219 SOC Particulars [18G.5.2]. -- 44 of 60 -- [2026] WASC 244 HOWARD J Page 45 8. Units 1 to 4 would have been rented out and would have received certain pleaded rental income.221 240 The first significant hurdle for the plaintiffs' reliance and causation pleas, which I consider cannot be overcome, was Mr Parin's evidence in cross-examination: STANTON, MS: So option 3 was ruled out - - -?---Yes. - - - by you in October 2017?---Yes. So it certainly, wasn't going to be ruled in in January 2018, was it?---That's a fair comment, yes. Okay. So if there was no other option, then there was nothing that anyone could have done for you once the slab was down, because you had rejected the only option that Mr Lalli said there was?---At that point, there was no other option that they proposed to me. Well, there was no other option - - -?---I don't know that. - - - that you knew about at that time was there?---At that time, yes. Yes. So it didn't matter at all what you made of that 15 January 2018 advice. Even if Mr Lalli had said in that advice, "The wall could continue to rotate," as Mr Lamattina has said in December, it wouldn't have made any difference to your decision-making in terms of construction in January 2018, would it?---Probably not, no.222 241 That is, Mr Parin accepted that, having rejected Option 3 in October 2017, he was not going to reconsider it in January 2018.223 242 That evidence effectively means the plaintiffs cannot succeed in making out the pleas in SOC [18G.1] and [18G.2]. 243 Mr Parin's evidence in this respect, in my assessment, was entirely consistent with the surrounding circumstances of what he knew from no later than 4 October 2017 and the decision which he had made with that knowledge or understanding from October 2017. That is, on the plaintiffs' case: 1. the Engineer gave 'correct' advice in October 2017; 220 SOC Particulars [18G.5.4]. 221 SOC Particulars [18G.5.6]. 222 ts 286 - 287. 223 ts 286. -- 45 of 60 -- [2026] WASC 244 HOWARD J Page 46 2. having received that correct advice (that is, prior to the pouring of the slab), Mr Parin decided not to implement either version of Option 3 - being changes to the design of the cavity wall of the NW Unit; but 3. if given that same correct advice in January 2018, after the slab was down, Mr Parin would have made a different decision and stopped the further construction. 244 That last proposition of the plaintiffs' case I have just identified, was contradicted by Mr Parin's own evidence (identified in [240] above). 245 I have considered some further difficulties below. 246 In closing, for the first time, there was an attempt by the plaintiffs to advance a different case which had as a premise that the plaintiffs could have put in an external wall on the NW Unit with a strengthened design to withstand the Retaining Wall loading it. 247 In closing, again for the first time, the plaintiffs submitted that there had been reliance on the Statement (and maybe the Engineer Representations) because construction occurred after 15 January 2018 without any objection from Mr Parin and without dealing with the issues identified with the Retaining Wall.224 I do not consider the plaintiffs can advance such cases on the basis of their pleadings and the way the trial was run up to that point. 248 I have referred to this above as one of the cases not run by the plaintiffs. SOC [18G.1]: The plaintiffs would not have permitted the Builder to commence construction 249 The immediate factual difficulty with this plea is that by 15 January 2018 the Builder had materially commenced the Development and the slab had been poured. 250 Building had already commenced and was, relevantly, literally set in concrete before the Engineer's 15 January 2018 email. 251 Perhaps to overcome that difficulty, there was a shift in the plaintiffs' position in their closing to focus attention away from 224 ts 510. -- 46 of 60 -- [2026] WASC 244 HOWARD J Page 47 'commencing construction' to construction continuing, with the emphasis being placed on building from the slab.225 252 Nonetheless, the difficulties presented by Mr Parin's own evidence (as identified in [240] above) remain for this plea. SOC [18G.1]: The plaintiffs would have insisted the Engineer strengthen the design 253 The immediate factual problem with this plea is that the Engineer had, on 4 October 2017, at the latest, given the plaintiffs' options to 'strengthen the design to be adequate to deal with any loading of the new construction'226 and the plaintiffs had rejected them. 254 Further, there was no evidence led by the plaintiffs that they would have so 'insisted'. 255 It was not put to Mr Lalli in cross-examination that the second iteration of his Option 3227 could have been built or accommodated on the slab as laid. 256 Nonetheless, the difficulties presented by Mr Parin's own evidence as identified in [240] above, remain for this plea. SOC [18G.2]: The Development could not be completed until the Retaining Wall had been rectified 257 The immediate problem with this plea is that there was no evidence put before the Court to support it. There was no evidence which established that the Development could not be completed until the problems with the Retaining Wall had been rectified. 258 It may be that was Mr Parin's belief although, if I had to decide it, I would not find it was a genuinely held belief. However, even if it was Mr Parin's belief, that is not evidence that it was factually the case. SOC [18G.4]: Completion of the Development had been delayed 259 There was no evidence before the Court which showed any connection whatsoever between the Statement and the Engineer Representations and the progress of the construction. 225 See, eg, Plaintiffs' closing submissions [12], [58] and [59]. 226 SOC [18G.1]. 227 See TB 48 and TB 49. -- 47 of 60 -- [2026] WASC 244 HOWARD J Page 48 260 Indeed, there was no evidence to suggest that anything different was done by either the plaintiffs or the Builder following the Engineer's 15 January 2018 email and so there is no evidential foundation to consider that email impacted on the construction from 15 January 2018 onwards. 261 Rather, all of the evidence was to the effect that the completion of the Development was halted by the termination of the Building Contract (which Mr Parin initiated), and no steps were taken which would have allowed for the completion of the Development. SOC [18G.5.1]: But for the Engineer's 15 January 2018 email, completion of the Units would have occurred by 11 January 2019 262 The immediate factual difficulty with this plea is that the Building Contract came to an end on 8 June 2018 for seemingly unrelated reasons. 263 There was no evidence that the Building Contract came to an end for any reason either directly or indirectly connected with the Statement. 264 Indeed, Mr Parin accepted that he did not seek to terminate the Building Contract because of any concern about the Grout Block, nor the Retaining Wall.228 265 Rather, the plaintiffs' notice to remedy229 and notice of termination230 did not agitate anything to do with the Retaining Wall, nor anything to do with any advice from the Engineer nor the Engineer's 15 January 2018 email. 266 Further, there was no evidence that the plaintiffs sought to engage another builder after the Building Contract came to an end on 8 June 2018. 267 So, in short, there was no evidence that, after the termination of the Building Contract, the Development could have been completed by 11 January 2019, but for the Statement (or otherwise). Mr Parin accepted that he was unable to comment on whether the Development could have been completed by January 2019 as he was not a builder.231 228 ts 289. 229 TB 143. 230 TB 168. 231 ts 307. -- 48 of 60 -- [2026] WASC 244 HOWARD J Page 49 268 Those matters, equally, as will be seen, dispose of the claimed loss or damage arising out of sales of the Units, or rental income from the Units proposed to be retained, which did not occur. Conclusion on the pleaded loss and damage 269 With respect, even if the plaintiffs had been able to establish that the Statement was, or the Engineer's Representations were, misleading and deceptive in a material sense, and had been able to establish that they had relied upon them, then I would have found that, as formulated, the plaintiffs had not established compensable loss and damage, or any loss or damage at all, caused by the Engineer, for the reasons set out above. Plaintiffs' calculation of their losses 270 Obviously enough on my findings above, the plaintiffs are not entitled to an award of damages. 271 However, I have considered the claimed losses if I am wrong on the merits of the plaintiffs' claims. 272 The plaintiffs pleaded that if the Development had been completed in January 2019, the eight Units on the Property would have sold for a total of $4,152,500,232 being: 1. $490,000 for each of Units 1 to 4; 2. $530,000 for Unit 5; 3. $540,000 for Unit 6; 4. $572,500 for Unit 7; and 5. $550,000 for Unit 8. 273 It may immediately be noted that the plaintiffs' claim and evidence was that only four of the Units would have been sold at the completion of the Development, and the other four Units would have been retained by Mr Parin and rented out.233 It was not explained how the two different pleas at SOC [4A] and SOC [50] should be read consistently. 232 SOC [50]. 233 SOC [4A]; Exhibit A [7]. -- 49 of 60 -- [2026] WASC 244 HOWARD J Page 50 274 It may be seen that there are at least three premises in the plea at SOC [50]; namely: 1. that the Development would have been completed in January 2019, presumably but for the Engineer Representations;234 2. the sale prices for each of the units would have been as pleaded in SOC [18G.5.2] and [18G.5.4]; and 3. the Units would have sold at the times and at the prices pleaded in those paragraphs of the SOC. 275 The plaintiffs then plead two calculations of their losses in SOC [54] and then, in the alternative, in SOC [55]. Plaintiffs' primary calculation of losses 276 By SOC [54], the primary claim to loss, it is pleaded that the plaintiffs suffered damages in the amount of $1,324,520235 which is said to be for: 1. 'holding costs' for the four Units which were to be retained and rented; namely for: land tax, Water Corporation charges (of some description) and City of Stirling rates;236 2. a claim to loss of rent on the four properties which were to be retained;237 and 3. two amounts of interest.238 277 The 'holding costs' on the four Units which were to be retained are then pleaded to be: 1. land tax in an amount of $16,352;239 2. Water Corporation charges of $5,714;240 and 3. City of Stirling rates being $7,645.241 234 SOC [18G.5.1]. 235 SOC [54]. This is denied by the Defence [54]. 236 SOC [54.1] - [54.4]. 237 SOC [54.7]. 238 SOC [54.6] and [54.8]. 239 SOC [54.2]. 240 SOC [54.3]. 241 SOC [54.4]. -- 50 of 60 -- [2026] WASC 244 HOWARD J Page 51 278 The plaintiffs adduced no evidence that established either the payment of the 'holding costs' items, nor anything to support a more notional claim to them. 279 Consequently, I cannot assess that claim, nor include it in any findings of loss. I would have assessed this claim as not having been established by the plaintiffs. 280 As part of the plaintiffs' primary claim to damages there are two calculations of interest pleaded, namely: 1. additional interest on $1,225,500 from 8 February 2019 until the estimated sale of Units 7 and 8 on 22 August 2024, being $419,826;242 and 2. interest on $1,070,000 from 11 May 2019 until the sale of Units 5 and 6 on 23 February 2025 being $372,008.243 281 As I understand it, the principal sums on which the interest is sought to be calculated is the pleaded sale price for the respective units. That is, the interest claim is not interest that the plaintiffs have paid, but rather to compensate them from being 'kept out' of their money.244 282 Even if what was claimed was appropriate to compensate the plaintiffs for being held out of their money, the factual assumptions on which the calculations rest were not made out. That is, I could not have made a finding as to when the Units would have been completed and the costs to complete them following the Building Contract coming to an end in January 2018. Those two matters, alone, mean that the plaintiffs could not have succeeded on those interest claims. 283 Counsel for the plaintiffs accepted in closing that there was no evidence as to what it would have cost for another builder to complete the Development after the Building Contract had been terminated.245 284 The last item in the plaintiffs' primary damages claim is lost rent for the period 11 May 2019 to 23 January 2025 and continuing.246 The plaintiffs relied on the pleaded 'rental value' of Units 1 to 4 in SOC [35F], which are the Units Mr Parin intended to keep. 242 SOC [54.6]. 243 SOC [54.8]. 244 ts 150; Plaintiffs' closing submissions [68]. 245 ts 552. 246 SOC [54.7]. -- 51 of 60 -- [2026] WASC 244 HOWARD J Page 52 285 As SOC [35F] makes plain, the plaintiffs relied on the expert evidence of Mr MacEwan to support their lost rent claim. 286 For reasons explained below, I could place no weight or reliance on Mr MacEwan's opinion as to likely rental income. So, I can make no findings at all as to what rent the plaintiffs may have received even if they had been able to establish that the Units would have been available for rent from May 2019. 287 Further, for reasons explained elsewhere, I also consider that the plaintiffs could not make good in any relevant sense the assumption that the Units could have been rented by them from any point in time, and that would have been a further reason against making any finding as to lost rent. Plaintiffs' alternative calculation of loss 288 The plaintiffs pleaded an alternative claim to damages of $759,545.247 That alternative plea was not easy to follow. 289 It appears to have proceeded on the following basis: 1. the eight Units would have been completed in January 2019;248 2. they would have been sold for $4,152,500;249 3. if the Building Contract had continued, then the costs to complete the Development would have been $1,346,665;250 4. the plaintiffs would have received the sum of $2,805,835 at about January 2019 if one deducted the $1,346,665 (costs to complete the Development) from the combined sale price of $4,152,500;251 5. the Property was sold for $2,100,000 in July 2025;252 6. the difference between the 'net amount' the plaintiffs say they would have received in January 2019 and the actual purchase price was $705,835;253 247 SOC [55]. 248 SOC [55.1]. 249 SOC [55.1]. See also SOC [50]. 250 SOC [55.3]. 251 SOC [55.3]. 252 SOC [48] and [55.4]. -- 52 of 60 -- [2026] WASC 244 HOWARD J Page 53 7. the plaintiffs incurred 'holding costs' from January 2019 until 4 July 2024 of $53,710;254 and 8. the 'difference in sale price' of $705,835 added to the holding costs of $53,710 comprises the total of $759,554 claimed in the alternative.255 290 The above calculation assumed completion of the Units in January 2019 which, as I have set out above, is an assumption which cannot be made good on the plaintiffs' evidence. 291 It further assumes that all eight Units would have been sold despite, as explained elsewhere, the plaintiffs' case and evidence being that they intended to retain four Units. 292 The 'balance of the completion costs' claimed assumes that another builder was or could have been engaged to complete the Development after June 2018 for exactly the same price as was 'outstanding' under the Building Contract. No evidence was led to support that and it cannot be accepted. 293 The plaintiffs do not, when calculating the 'net' amount they would have received on the sale of the units in January 2019, bring into account the costs of construction they had already paid prior to the termination of the Building Contract. Rather, they effectively ignore those additional (prior) costs (which would obviously have to come off the sale receipts to calculate any of the plaintiffs' net gain).256 294 The 'holding costs' in the alternative calculation from January 2019 until 4 July 2024 are not set out or explained. However, if they are intended to be a reference to a subset of the 'holding costs' pleaded in SOC [54.1] - [54.4], then they cannot be accepted for the same reasons as the more detailed set of 'holding costs' would not be accepted. 295 For all of those reasons, I could not make a finding that the plaintiffs suffered any loss on the alternative basis pleaded. 253 SOC [55.4]. 254 SOC [55.5]. 255 SOC [55.6]. 256 This difficulty was raised with the plaintiffs in their opening, but remained unaddressed by the end of the trial: see ts 153. -- 53 of 60 -- [2026] WASC 244 HOWARD J Page 54 Expert opinion of Graeme MacEwan 296 The plaintiffs tendered a report of Mr MacEwan which was filed on 17 July 2023.257 297 Mr MacEwan's report and evidence only falls to be considered if I am wrong on the findings I have made against the merits of the plaintiffs' case. For those reasons, I will endeavour to be short in this section. 298 Mr MacEwan was a quite unimpressive witness who had a clear view of what he considered were relevant questions and, until directed by the Court, considered himself able to answer only those questions he considered to be relevant.258 299 Mr MacEwan's attitude in the witness box was certainly not one of an independent expert. The prime example of that (leaving aside his wish to only answer the questions he thought to be relevant) was an exchange with counsel about whether he had been disciplined professionally previously on a matter which was materially relevant to the acceptance of his opinion in this case. The short answer was that he had,259 but there was no frank acceptance of that by him. 300 Other breaches by Mr MacEwan of the Licensed Valuers Code of Conduct were exposed in the course of his cross-examination. I do not need to separately deal with them here. 301 Mr MacEwan's demeanour in the witness box leads me to have significant reservations as to both his independence and his expertise. 302 With respect, Mr MacEwan's report was as equally unimpressive as was Mr MacEwan in the witness box. 303 As I understand it, Mr MacEwan’s report is relied on by the plaintiffs in their damages claim to prove the market value of the Units at two points in time, and also the rental income which may have been derived for the four Units on the ground floor of the Development. 304 Mr MacEwan did not attach to his report the instructions he had received from the plaintiffs' solicitors and did not produce any record of 257 Valuation Report of Graeme MacEwan filed 17 July 2023 (Exhibit E). 258 See, for example: ts 328, ts 340. 259 Government of WA Article published on 20 July 2022 and dated 14 August 2024 (Exhibit F). -- 54 of 60 -- [2026] WASC 244 HOWARD J Page 55 verbal instructions he received from either the plaintiffs' solicitor or Mr Parin himself.260 305 If I turn then to his valuation of the four Units to be sold, it appeared that Mr MacEwan relied on the sale price of four other properties as comparisons for each of January 2019 and January 2020.261 306 In relation to January 2019, Mr MacEwan stated: Evidence For January 2019 1. 2/39 Selina Street Innaloo 2 bed 2 bath unit 72 m2 sold $415,000 9/10/2018 Inferior. 2. 2/50 Boronia Street Innaloo 2 bed 2 bathroom. 68m2 sold 15/1/19 $422,000 Inferior smaller. 3. 3/39 Selina Street Innaloo 2 bed 2 bath 72m2 sold 21/11/18 $420,000 Inferior. 4. 7/39 Selina Street Innaloo 2 bed 2 bath 63 m2 sold 18/10/18 $442,000. Similar style smaller unit. Evidence shows sale rate. between $6205m2 and $7015m2 we have adopted $6500m2 Market.262 (emphasis in the original) 307 In relation to January 2020, Mr MacEwan stated: For January 2020 1. 5/1 Liege Street Woodlands sold 23/7/19 $395,000 2 bed 2 bath unit. Inferior. 2. 65 Moorland Street Doubleview sold 1/7 /19 $585,00 2 bed 2 bath group. house [sic] Superior. 3. 132 Flamborough Street Doubleview sold $420,000 12/11/19 2 bed 2 bath group house new inferior location. 4. 236 Wilding Street Doubleview sold 4/6/19 $540,000 2 bed 2 bath group. house [sic] comparable. 260 ts 329 - 330. 261 Exhibit E at PDF page 7. 262 Exhibit E at PDF page 7. -- 55 of 60 -- [2026] WASC 244 HOWARD J Page 56 Evidence shows sale rate of $5821m2 to $7857m2. The market from January was being affected by covid and prices would begin to drop. We have adopted $6,700m2.263 (emphasis in the original) 308 As may be seen, in relation to the four properties listed as 'evidence' for January 2019, Mr MacEwan rated three of them as 'inferior' and the fourth as 'similar style, smaller unit'. 309 Again, as may be seen, in relation to the four properties cited as 'evidence' for January 2020, Mr MacEwan rated them respectively as 'inferior', 'group house superior', 'group house new inferior location' and 'group. [sic] house comparable'. 310 Mr MacEwan's report did not identify what made the other properties 'inferior' or 'superior' or 'similar'. Nor did he say what he meant by 'group house'. 311 Further, it was not apparent from his report how Mr MacEwan had reasoned to the values as at January 2019 and January 2020 for the four upper floor Units.264 312 It was unclear, for example, whether Mr MacEwan had sought to simply multiply the square meterage of the particular Unit he was valuing by the 'adopted' figure of $6,500m2 in January 2019 and $6,700m2 in January 2020. I say that because the calculation did not exactly match the adopted figure per square metre when multiplied by the area of the particular Unit. That left open the possibility that Mr MacEwan: 1. performed some different valuation; 2. had made mathematical errors in his calculation from the adopted figure; or 3. had rounded up or down certain values produced by the multiplication of the adopted rate by the square meterage of the particular Unit. Which of these occurred was not explained by Mr MacEwan. 263 Exhibit E at PDF page 7. 264 Exhibit E at PDF page 8. -- 56 of 60 -- [2026] WASC 244 HOWARD J Page 57 313 Further, it was unclear to what extent Mr MacEwan had relied on the contracts which Mr Parin had entered into for the sale of Units 7 and 8 and which Mr MacEwan had included in his 'comments'.265 It is not clear whether he used them as evidence to determine the sale rate (but did not include them under the heading of 'evidence') or if he made some other use of them. 314 As was apparent from his cross-examination, Mr MacEwan had not sighted the two contracts of sale and could not say whether the prices (as sold off the plan) were inclusive or exclusive of GST.266 315 I gave consideration as to whether I could use the two contracts of sale as some different evidence of the market value of the other Units to be sold. However, an immediate difficulty in doing so is the gap in time between the execution of the contracts of sale and the two later points in time at which the plaintiffs seek to prove the market value of the four Units. I consider it would be an unsafe basis to work from the two sale contracts. 316 I do not need to decide, presently, whether I accept Mr MacEwan's valuation of the market value of the four Units to be sold as at January 2019 and January 2020. That is principally because, as I have set out elsewhere, I do not consider that the plaintiffs have made good the factual assumption that the Units would have been available for sale either in January 2019 or January 2020. 317 In any event, however, for present purposes, I consider it is enough to say that the very considerable reservations I have about accepting Mr MacEwan's opinion evidence in its unreasoned form would have led me to not accept his evidence. 318 The plaintiffs submitted267 that Mr MacEwan's evidence was not challenged as to its accuracy and no evidence was led to show that the valuation should have been different. With respect, this seems to miss the point. The Court is not obliged to accept expert evidence, even when no contrary expert opinion evidence has been called. And, in any event, with the assumptions not having been established, the expert evidence could not be accepted in any event. 265 Exhibit E at PDF page 7. 266 ts 339. 267 Plaintiffs' closing submissions [70]. -- 57 of 60 -- [2026] WASC 244 HOWARD J Page 58 319 Mr MacEwan expressed his opinion on the rent which may have been derived from the four ground floor units as follows: Rental Units l-4 Ground Floor rent per unit January 2019. $335pw January 2020 $410pw January 2021 $450pw January 2022. $525pw January 2023. $700 pw268 320 Those values were incorporated into the SOC at [35F]. 321 As was exposed in cross-examination,269 Mr MacEwan did not set out in his report the information he had taken into account in providing those figures for rent. 322 That would have been enough, in my view, for me to find that I could not rely on Mr MacEwan's opinion evidence on the rent which may have been derived. Counsel for the plaintiffs accepted in closing that there was no basis or evidence included in Mr MacEwan’s report to support his opinions on the rent which could have been derived.270 323 In conclusion, I would not have accepted any of the opinion evidence of Mr MacEwan. Other matters pleaded in the Engineer's Defence 324 The Engineer pleaded the following in its defence: 1. there was a contractual limitation period in its terms with the plaintiffs that would time-bar the action against it;271 2. that the plaintiffs' claim was an apportionable claim within s 5A(I) of the Civil Liability Act 2002 (WA) and/or s 87CB(1) of the Competition and Consumer Act 2010 (Cth);272 and 268 Exhibit E at PDF page 8. 269 ts 336 - 337. 270 ts 547 - 548. 271 Defence [57] and following. 272 Defence [61]. -- 58 of 60 -- [2026] WASC 244 HOWARD J Page 59 3. there was a contractual limitation that capped damages recoverable by the plaintiffs from the Engineer.273 325 None of the above matters were addressed by the Engineer in any of its submissions. 326 In its closing submissions, Counsel for the Engineer indicated that, formally, the Engineer was not abandoning any of the above three matters pleaded in the Defence.274 However, she was not advancing any submissions to support the pleas.275 327 In light of the conclusions I have reached, I do not consider it necessary for me to consider any of those further three matters pleaded by the Engineer and I have not done so. Disposition 328 I have not found that the Statement made the Engineer Representations to Mr Parin as pleaded. 329 If I am wrong about that, I do not find that the Statement and the Engineer Representations mislead or deceived, or were likely to mislead or deceive, Mr Parin. 330 If I am wrong about both of those matters, I do not consider that there was any reliance by Mr Parin on the Statement or the Engineer Representations such that any loss or damage was caused by reason of the Statement or the Engineer Representations. 331 In any event, I would have held that the plaintiffs had not established that they had suffered any loss or damage as claimed because of deficiencies in the evidence at trial. 332 Consequently, I dismiss the plaintiffs' claims against the Engineer. 333 I will hear the parties as to the final form of orders and costs, as needs be. 273 Defence [64]. 274 ts 503 - 504. 275 ts 504. -- 59 of 60 -- [2026] WASC 244 HOWARD J Page 60 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IF Associate to the Hon Justice Howard 18 JUNE 2026 -- 60 of 60 --